Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding D.C. No. 4:08-cr-00002-BLW-1
The opinion of the court was delivered by: W. Fletcher, Circuit Judge:
Argued and Submitted November 3, 2010-Portland, Oregon
Before: Ruggero J. Aldisert,*fn1 William A. Fletcher and Raymond C. Fisher, Circuit Judges.
Opinion by Judge William A. Fletcher
Defendant-Appellant Cory King was convicted after a three-day jury trial of four counts of injecting fluids into deep wells without a permit, in violation of the Safe Drinking Water Act, 42 U.S.C. § 300h-2(b)(2). He was also convicted of one count of making a "materially false" statement in a "matter within the jurisdiction" of the United States, in violation of 18 U.S.C. § 1001(a)(2). King timely appealed. We affirm.
At all times relevant to this appeal, King was the manager of a large farming and cattle operation in southern Idaho, Double C Farms Partnership ("Double C"). Double C's facilities include about 11,500 acres of cropland irrigated by a system of wells and pivots (a type of agricultural sprinkler), and a segregated 25-acre cattle feedlot containing between 15,000 and 20,000 head of cattle.
In January 1987, King applied to the Idaho Department of Water Resources for a permit to inject "winter runoff from Willow Creek," a creek that passes through the Double C facilities, into a 500-foot well between November and April.
The purpose was "to inject this water in winter so that it can be pumped out in summer." The application stated that because the injected water would be used to irrigate crops, it "must be clean." The State denied the application in November 2000.
On May 23, 2005, John Klimes, an investigator employed by the Idaho Department of Agriculture, drove onto Double C property to conduct a "routine waste inspection" of the feedlot operation. Klimes had an 11:00 a.m. appointment with feedlot manager Curtis Taylor. As Klimes drove toward the feedlot for the appointment, he noticed that the north side of the "main waste pond" for the feedlot had washed out and that waste was running from the pond into a ditch. He also noticed that a pipe on the west side of the pond "had been uncapped" and that waste from the pipe was running into the same ditch. When Klimes arrived at the feedlot, Taylor was not there. Klimes called him on his cell phone, and they arranged to meet at about 2:00 p.m. that afternoon.
As Klimes was driving away from the feedlot, he was stopped by a man in a pickup truck coming the opposite direction. The driver identified himself as "one of the main irrigators on the Double C facility," but declined to give his name. The employee was later identified as Shaun Carson. Klimes identified himself as an inspector from the Department of Agriculture. Carson told Klimes that the water in the ditch came from a waste containment pond that had ruptured. He also told Klimes that anti-backflow valves at two wells on the property had been reversed so that the "dirty water" could be injected into the wells. Carson urged Klimes to investigate quickly because the valves would be installed properly by the end of the day.
Klimes investigated the valves at Wells One and Four on the Double C property. Just as Carson had said, the backflow valves at each well were installed in the wrong direction, allowing water to flow into the wells. Klimes saw no irriga- tion pivots operating in the vicinity of either well. If pivots had been operating, that would have indicated that water was coming out of, rather than going into, the wells. Klimes also heard water "cascading" into Well One. When Klimes returned to the wells later in the day, the valves were properly installed, as Carson had said they would be.
On June 2, Klimes returned to Double C for a scheduled meeting with King. He was accompanied by his supervisor, John Chatburn, as well as other Idaho Department of Agriculture employees. At the meeting, Chatburn confronted King with the allegation that he had been injecting wastewater into his wells. King denied the allegation. When Chatburn asked King if they could take samples from his wells, King responded that the wells had not yet been turned on. This contradicted what Klimes had observed on his first visit to Double C.
Later that day, Klimes and Chatburn went to Well Five unaccompanied by King. They noticed an uncovered valve that was ordinarily covered with dirt. They heard water "running back down the well." The ground around the well was vibrating slightly, and the vent pipe at the back of the well was blowing air. Later that day, as Klimes was driving around the Double C facilities, he noticed King and Jose Guerrero near Well Five from about half a mile away. Klimes approached them and asked King and Guerrero to accompany him to the well. When they arrived at Well Five, Klimes saw that the valve had been re-covered. Klimes asked King what the valve did. King told Klimes that the valve led to a nearby irrigation pivot. It was established at trial that King's statement to Klimes was false. The valve, in fact, led to the well.
In February 2008, the government filed a First Superseding Indictment charging King with four counts of violating the Safe Drinking Water Act ("SDWA"). Each count alleged that King "willfully injected water" into a well "which is more than eighteen feet in vertical depth below land surface, with- out a permit issued by the State of Idaho, despite having knowledge of the requirement to first obtain such a permit[.]" None of the four counts charged that the injected water was contaminated. The indictment also charged King with one count of violating 18 U.S.C. § 1001(a)(2) by "knowingly and willfully" making a "materially false" statement in a "matter within the jurisdiction" of the United States when he told Klimes that "the valve and pipe. . . at . . . Well No. 5 [were] feeding an irrigation pivot."
The jury returned a guilty verdict on all five counts. King appeals on several grounds. With respect to the four counts under the SDWA, King makes two statutory arguments. First, he contends that the government was required to allege and prove that the injected water had an adverse effect on an underground source of drinking water. Second, he contends that Idaho's permitting requirement for injection wells is not part of Idaho's "applicable underground injection program," so that his failure to obtain a permit did not violate the SDWA. He also makes a constitutional argument. He contends that if his unpermitted injections are held to violate the SDWA, the Act exceeds Congress' authority under the Commerce Clause. With respect to the fifth count under 18 U.S.C. § 1001(a)(2), King contends that his "materially false" statement was not made in a "matter within the jurisdiction" of the United States because it was made to a state agricultural inspector. Finally, King challenges the district court's denial of his post-verdict motion for a new trial because of violations of a pre-trial order and alleged prosecutorial misconduct.
We discuss King's arguments in turn.
We review de novo the sufficiency of an indictment. United States v. Oren, 893 F.2d 1057, 1063 (9th Cir. 1990). We review the district court's construction of the SDWA de novo. See United States v. Cabaccang, 332 F.3d 622, 624-5 (9th Cir. 2003) (en banc). We review the district court's construction of 18 U.S.C. § 1001 de novo. Oren, 893 F.2d at 1064. We review Congress' authority under the Commerce Clause de novo. United States v. Dorsey, 418 F.3d 1038, 1045 (9th Cir. 2005). Finally, we review a district court's denial of a motion for a new trial ...